The Village Building Co. Limited v Queanbeyan-Palerang Regional Council

Catchwords: DEVELOPMENT APPEAL – characterisation of development – construction of dwellings – whether prohibited development – whether each dwelling is on its own lot of land – strata subdivision – orders

Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 1.5, 4.1, 4.2, 4.3, 4.12, 4.15 4.19, 6.2, 8.7
Land and Environment Court Act 1979, s 34
Real Property Act 1900 (NSW)
Strata Schemes Development Act 2015 (NSW), ss 4, 9
Queanbeyan-Palerang Regional Local Environmental Plan 2022, cl 2.3
Woollahra Local Environmental Plan 2014, cl 6.5

Cases Cited: Botany Bay City Council v Pet Carriers International Pty Limited (2013) 201 LGERA 116; [2013] NSWLEC 147
Canterbury-Bankstown Council v Hamptons Property Services Pty Ltd [2025] NSWLEC 41
Chamwell Pty Limited v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114
Dallad Pty Ltd v Woollahra Municipal Council [2022] NSWLEC 1673
Gordon and Valich Pty Ltd v City of Sydney Council [2007] NSWLEC 780
Lennard v Jessica Estates Pty Limited [2008] NSWCA 121; (2008) NSWLR 306; (2008) 159 LGERA 420Lennard v Jessica Estates Pty Limited (2008) NSWLR 306; [2008] NSWCA 121
People for the Plains Inc. v. Santos NSW (Eastern) Pty Ltd (2017) 220 LGERA 181; [2017] NSWCA 46
Royal Agricultural Society of NSW v Sydney City Council (1987) 61 LGRA 305 at 310
Sofi v Wollondilly Shire Council [1975] 2 NSWLR 614
Terra Ag Services Pty Ltd v. Griffith City Council [2017] NSWLEC 167
Wehbe v Pittwater Council [2007] NSWLEC 827
Williams v Shellharbour City Council [2020] NSWLEC 3

Category: Principal judgment

Parties: The Village Building Co. Limited ACN 056 509 025 (Applicant)
Queanbeyan-Palerang Regional Council (Respondent)

Representation: Counsel:
T To SC (Applicant)
A Seton (Solicitor)(Respondent)
Solicitors:
Lindsay Taylor Lawyers (Applicant)
Marsdens Law Group (Respondent)

File Number(s): 2025/461403 & 2025/461415

Publication restriction: No

Judgment

1. These appeals were heard concurrently and relate to two separate development applications that each propose, relevantly, development comprising the construction of dwellings which are physically attached to one another, and strata subdivision.

2. The two proposed developments are each in the suburb of Tralee, being firstly, proceedings 2025/461403, relating to Development Application No DA.2025.0302 which seeks consent for development described as the construction of 3 attached dwellings with associated landscaping, site works and strata title subdivision at 12 Photinia Street, Tralee, legally described as Lot 13 in DP 1302790 (Photinia St development). Lot 13 is within Zone R2 Low Density Residential pursuant to the provisions of the Queanbeyan-Palerang Regional Local Environmental Plan 2022 (QPLEP), is irregular in shape and has a total area of 951m².

3. Secondly, proceedings 2025/461415, relate to Development Application No DA.2025.0420 seeking consent for development described as the construction of 66 x 2 storey attached dwellings with associated landscaping, site works and strata title subdivision at 2 Abelia Avenue, Tralee, legally described as Lot 100 in DP 1316639 (Abelia Ave development). Lot 100 is located within 3 different land zones pursuant to the provisions of QPLEP (being Zone R2 Low Density Residential (Zone R2), Zone C2 Environmental Conservation and Zone RE2 Private Recreation), is irregular in shape and has a total area of 16,240m². However, the Abelia Ave Development is to be carried out only on that portion of Lot 100 that is within Zone R2, on proposed Lot C217 in a subdivision of land that has not yet been carried out but is authorised by the development consent granted to development application No DA.2021.1284 on 23 December 2023.

4. There are no merit contentions raised by the Respondent concerning either Photinia St development or Abelia Ave development. The only reasons given in the Assessment Reports (Ex 4, Tab 8 for the Photinia St development and Ex 2, Tab 3 for the Abelia Ave development) relate to permissibility and characterisation. The built forms, land use and impacts of the developments are all appropriate to the zoning and otherwise comply with the applicable development controls.

5. In relation to merit, the parties addressed the objectors’ submissions regarding the Photinia St development relating to traffic and parking, noting that each dwelling has off-street parking for 2 cars as depicted in Ground Floor drawings. The concerns relating to overshadowing and privacy are addressed by agreeing that the design minimises overshadowing and rely on the following:

6. Architectural drawings SH-00 Rev A Shadow Diagram (Ex A, Tab 5);

7. Assessment against DCP controls including setbacks p 15 (minimum front setback 6 m) (Ex A Tab 4);

8. Elevation 4 DW A200: highlight windows on upper floor (A101 “HL) and noting Elevation 1 depicting upper levels as bedroom or ensuites.

9. The parties have reached agreement on the Conditions for each development in the event the court determines that consent should be granted (Ex 3 for the Abelia Ave development and Ex 5 for the Photinia St development).

10. However, in each case Council raises a single contention to warrant the refusal of both developments relating to the issue of permissibility, linked to the characterisation of the proposed developments pursuant to the QPLEP. That single issue is repeated in the Statement of Facts and Contentions (SOFAC) filed by the Respondent for each appeal (Ex 1 for the Abelia Ave development and Ex 3 for the Photinia St development) as follows:

“The development application must be refused because the proposed development is properly characterised as “multi-dwelling housing” which is prohibited in the Zone R2 Low Density Residential pursuant to QPLEP 2022.”

8. I accept the Respondent’s concession that the SOFAC does not accurately frame the matter to be determined (Transcript 15 May 2026, p 21 at par 50). The Respondent refers to the Zone R2 in the QPLEP Land Use Table as a “closed zone” (Transcript 15 May 2026 p 21 at par 44) because if the developments are not characterised as “attached dwellings” or as some other type of development specified in item 2 or 3 of the Land Use Table relating to Zone R2, they will be prohibited under item 4 of the Land Use Table as “development not specified in item 2 or 3” (Respondent’s Written Submissions at par 6).

9. The only question that arises in both matters, is whether the development is a type that is specified in item 3 of the Land Use Table, relating to Zone R2 in the QPLEP. The Respondent’s approach is that the Contention should say: "The development application must be refused because the proposed development is prohibited, because it is not development specified in item 2 or 3 of the Land Use Table relating to Zone R2." (Transcript 15 May 2026, p 34-35). The Applicant agrees with this approach (Transcript 15 May 2026, p 35 at par 8).

10. Therefore, it is agreed that the only question to be answered is whether the development proposed is a type of development specified in item 3 in the R2 zone land use table. I answer this question in the negative below at [70].

11. Each party assisted the Court by providing written submissions. The Respondent’s Written Submissions (RWS) filed 1 May 2026 were marked MFI 1, and the Applicant’s Written Submissions (AWS) filed 8 May 2026 were marked MFI A. The Applicant also provided a Jurisdictional Statement to the Court setting out how both Proposed Developments satisfy the relevant jurisdictional prerequisites (Ex B (Photinia St development) and Ex D (Abelia Ave development)). The Respondent agrees with the Jurisdictional Statements except for par 20 and par 28 respectively, which reads:

“The development is permissible with consent under QRLEP 2022 [sic] for the reasons set out in the Applicant’s written submissions on characterisation.”

12. The parties approach the exercise of characterisation from different perspectives. The Respondent approaches the exercise of characterisation as at the time of making the development application whereas the Applicant relies on the purpose of the proposed development in order to properly characterise the development.

13. The Respondent’s case is that as each site was a single lot at the time of making the development applications, the proposed developments cannot be as “attached dwellings” and they are therefore prohibited. The Respondent submits that the consequence of not characterising the proposed developments as “attached dwellings”, or as some other type of development specified in item 2 or 3 of the Land Use Table relating to Zone R2 at the time of making the development application, is that they will be prohibited under item 4 of the Land Use Table for being “development not specified in item 2 or 3” (RWS at par 6) and that consent must therefore be refused.

14. The Applicant’s case is that the Respondent’s single contention of permissibility must be rejected because the proposed development, in each case, is properly characterised as “attached dwellings” which, it is common ground, is permissible with consent under the QPLEP. The Applicant submits that the carrying out of the development that is proposed will result in physically attached dwellings, with each dwelling contained on its own (strata) lot (AWS, par 47) and is thus development for that purpose: cl 2.3(3)(a), QPLEP. The Applicant submits that Council’s approach “in effect involves not characterising the carrying out of development that is proposed by an application, but the characterising of some other development that is not proposed by the application (that is, the construction of dwellings physically attached and ignoring subdivision). This becomes a hypothetical exercise that is misdirected” (AWS at par 40).

15. As a starting point, I accept at the outset that the development applications have been amended during the Appeal, accordingly, the Applicant relies on, and I agree with, the settled principle that a development application is to be determined having regard to the facts and the law at the time of determination, and in a curial context, at the time of hearing: see Sofi v Wollondilly Shire Council [1975] 2 NSWLR 614 at 622 (Waddell J); Ku-ring-gai Council v Bunnings Properties Pty Ltd [2019] NSWCA 28 at [147] (Preston CJ of LEC).

16. I will set out the agreed facts and statutory framework from [18], followed by characterisation of a development from [31] where I look at timing and purpose. I then set out the authorities relied on by the parties from [52] and give my reasons from [70] why I reach the conclusion that the proposed developments are prohibited and that the court does not have the power to grant consent. I will use the singular when referring to the site and unless I specify otherwise it will be a reference to both sites.

17. I have identified the questions to be answered as follows:

18. What is the proper characterisation of the purpose of the development?

19. In relation to timing, what effect does strata subdivision have on the characterisation exercise?

20. In relation to purpose, does the strata subdivision result in the development being for the nominate permissible purpose of attached dwellings? Or put another way, will each dwelling be on its own lot of land or is a strata lot something different?

Agreed facts and statutory framework:

18. The parties largely agree on a set of facts, essentially as particularised in (a) to (f) in the Photinia St development or in (a) to (e) in the Abelia Ave development of the SOFACs, and which I now summarise as relevant.

19. The land the subject of each development application is a single lot at the time of making of each development application.

20. Each site is zoned R2 Low Density Residential under the QPLEP.

21. The Land Use Table for Zone R2 under the QPLEP is structured to provide that various specified land uses, including “attached dwellings”, are expressly permissible with consent, and that innominate development is otherwise prohibited. The Land Use Table in the QPLEP provides for Zone R2 as follows:

Zone R2 Low Density Residential

1 Objectives of zone

• To provide for the housing needs of the community within a low density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To ensure new development complements the scale, density and form of existing development.

• To encourage development that is consistent with the low density amenity of existing and future residents.

• To encourage development that is designed to recognise the bushland character of the locality, where appropriate, and to minimise the impact of urban development, particularly on the edge of the urban area.

2 Permitted without consent

Home businesses; Home occupations

3 Permitted with consent

Attached dwellings; Bed and breakfast accommodation; Boarding houses; Building identification signs; Business identification signs; Centre-based child care facilities; Community facilities; Dual occupancies; Dwelling houses; Environmental facilities; Environmental protection works; Exhibition homes; Exhibition villages; Flood mitigation works; Group homes; Health consulting rooms; Home-based child care; Home industries; Neighbourhood shops; Oyster aquaculture; Pond-based aquaculture; Recreation areas; Recreation facilities (indoor); Recreation facilities (outdoor); Respite day care centres; Roads; Secondary dwellings; Semi-detached dwellings; Seniors housing; Tank-based aquaculture; Water reticulation systems

4 Prohibited

Any development not specified in item 2 or 3

22. The Dictionary to the QPLEP provides the follow relevant definitions [emphasis added]:

attached dwelling means a building containing 3 or more dwellings, where—

(a) each dwelling is attached to another dwelling by a common wall, and

(b) each of the dwellings is on its own lot of land, and

(c) none of the dwellings is located above any part of another dwelling.

…

building has the same meaning as in the Act.

Note—

The term is defined to include part of a building and any structure or part of a structure, but not including a manufactured home, a moveable dwelling or associated structure (or part of a manufactured home, moveable dwelling or associated structure).

…

dual occupancy means a dual occupancy (attached) or a dual occupancy (detached).

Note—

Dual occupancies are a type of residential accommodation—see the definition of that term in this Dictionary.

dual occupancy (attached) means 2 dwellings on one lot of land that are attached to each other, but does not include a secondary dwelling.

Note—

Dual occupancies (attached) are a type of dual occupancy—see the definition of that term in this Dictionary.

dual occupancy (detached) means 2 detached dwellings on one lot of land, but does not include a secondary dwelling.

Note—

Dual occupancies (detached) are a type of dual occupancy—see the definition of that term in this Dictionary.

dwelling means a room or suite of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile

dwelling house means a building containing only one dwelling.

Note—

Dwelling houses are a type of residential accommodation*—see the definition of that term in this Dictionary.*

…

multi dwelling housing means 3 or more dwellings (whether attached or detached) on one lot of land, each with access at ground level, but does not include a residential flat building. [emphasis added]

…

residential flat building means a building containing 3 or more dwellings, but does not include an attached dwelling, co-living housing or multi dwelling housing.

Note—

Residential flat buildings are a type of residential accommodation—see the definition of that term in this Dictionary.

…

rural worker’s dwelling means a building or place that is additional to a dwelling house on the same lot and that is used predominantly as a place of residence by persons employed, whether on a long-term or short-term basis, for the purpose of agriculture or a rural industry on that land.

Note—

Rural workers’ dwellings are a type of residential accommodation—see the definition of that term in this Dictionary.

…

semi-detached dwelling means a dwelling that is on its own lot of land and is attached to only one other dwelling.

Note—

Semi-detached dwellings are a type of residential accommodation—see the definition of that term in this Dictionary.

23. “Lot” and “Land” are not defined in the QPLEP however they are both defined in the Strata Schemes Development Act 2015 (NSW) (Strata Act) which distinguishes them from each other and introduces the term ‘parcel’. I reproduce the following relevant definitions from s 4 of the Strata Act below:

building, in relation to a strata scheme or a proposed strata scheme, means a building containing a lot or proposed lot, or part of a lot or proposed lot, in the scheme or proposed scheme.

common property, in relation to a strata scheme or a proposed strata scheme, means any part of a parcel that is not comprised in a lot (including any common infrastructure that is not part of a lot).

lot, in relation to a strata scheme, means one or more cubic spaces shown as a lot on a floor plan relating to the scheme, but does not include any common infrastructure, unless the common infrastructure is described on the plan, in the way prescribed by the regulations, as a part of the lot. (emphasis added)

owner of a lot in a strata scheme means a person for the time being recorded in the Register as entitled to an estate in fee simple in the lot (in the case of a freehold strata scheme) …

parcel means—

(a) in relation to a strata scheme, the land comprising the lots and common property in the scheme, or

(b) in relation to a plan lodged for registration as a strata plan, the land comprised in the plan.

…

land means land under the Real Property Act 1900 that is held in fee simple, other than land comprised in a limited folio or qualified folio. (s 9, Strata Act)

24. For completeness I add the Rea**l Property Act 1900 (NSW) definition of Land:

Land—Land, messuages, tenements, and hereditaments corporeal and incorporeal of every kind and description or any estate or interest therein, together with all paths, passages, ways, watercourses, liberties, privileges, easements, plantations, gardens, mines, minerals, quarries, and all trees and timber thereon or thereunder lying or being unless any such are specially excepted.

25. There is no dispute that the grant of consent for the erection of a building authorises the use of that building: s 4.19, EPA Act. It is also agreed that a single DA can be made for one or more types of development as defined in s 1.5(1)(a)-(f) of the EPA Act: s 4.12(2), EPA Act. The listed types of development in s 1.5 of the EPA Act are as follows:

(a) the use of land,

(b) the subdivision of land,

(c) the erection of a building,

(d) the carrying out of a work,

(e) the demolition of a building or work,

(f) any other act, matter or thing that may be controlled by an environmental planning instrument.

26. Subdivision of land includes the procuring of the registration in the office of the Registrar-General of a strata plan of subdivision within the meaning of the Strata Act: s 6.2(2)(b), EPA Act.

27. The parties also agree that subdivision of land is not a use of land (Transcript 15 May 2026, p 43 at par 25).

28. In relation to subdivision, the QPLEP permits subdivision with consent pursuant to cl 2.6. The minimum subdivision lot size development standard of 330m2 pursuant to cl 4.1 of the QPLEP does not apply to these developments because subdivision of land is proposed by the registration of a strata plan or strata plan of subdivision under the Strata Act and the QPLEP does not contain any provisions that prescribe or impose a minimum lot size for the size of any lot resulting from a subdivision of land within zone R2: cl 4.1A, QPLEP.

29. Each development application proposes, relevantly, development involving:

30. The erection of buildings comprising 3 or more dwellings which are physically attached to another dwelling by a common wall, and with no dwelling located above any other;

31. Strata subdivision in accordance with the Strata Act.

32. The draft strata plans (Ex A, Tab 14 for the Photinia St Development and Ex B, Tab 1 for the Abelia Ave development) are incorporated into the Conditions (conditions 1 and 60 in Ex 5 for Photinia St development and conditions 1 and 67 in Ex 3 for Abelia Ave development).

What is the proper characterisation of the development?

31. Characterisation of a development is necessary in order to undertake an evaluation of a development application pursuant to s 4.15 of the EPA Act because of the structure of planning control under the EPA Act. The Applicant explains (AWS, para 15) that this structure:

32. relates to ‘development’, as defined in s 1.5(1) of the EPA Act;

33. controls the carrying out of development, by reference to a three-fold scheme of classification, being whether specified development does not need consent, needs consent, or is prohibited: ss 4.1, 4.2 and 4.3 of the EPA Act;

34. contemplates that an environmental planning instrument applying to the particular land will identify specified development that does not need consent, needs consent, or is prohibited: s 4.2(1) of the EPA Act;

35. relevantly here, provided by cl 2.3(1) and (3) and the Land Use Table of the QPLEP, the purposes of development that do not need consent, need consent, or are prohibited.

36. Relevantly, though, the QPLEP specifies separately at cl 2.6 that subdivision may occur only with development consent. That is, subdivision needs consent, but it is not dealt with in the Land Use Table of the QPLEP because subdivision is not a use of land. This is what creates the challenge or difficult question of characterisation in these proceedings.

37. The Applicant submits that the Respondent’s approach as particularised in the SOFACs indicates that Council’s argument rests on the following propositions:

38. First, that the characterisation exercise “is to be undertaken at the time of the making of the application” (first proposition).

39. Second, because, in each case, the subject land is a single lot at the time of the making of the application, the development cannot be characterised as development for the purposes of “attached dwellings” (second proposition).

40. Third, the development is instead to be characterised as “multi dwelling housing”, and is accordingly prohibited (third proposition).

41. In relation to the first proposition identified by the Applicant, I have already accepted that the timing of the characterisation is at the time of determination of the development application, and in relation to the third proposition, the Respondent has conceded that the proper framing of the question to be determined is whether the development proposed is a type of development specified in item 3 in the Zone R2 Land Use Table of the QPLEP.

42. The Applicant argues that each of the propositions are incorrect and involve clear departures from principle. The Applicant submits that in relation to characterisation, none of the matters identified by the Respondent grapple with or resolve the error of approach.

43. The proposed development is erection or construction of a building or buildings and strata subdivision. The Applicant’s approach is that when considered as a whole, including the strata subdivision, the result will be development that answers the definition of “attached dwelling”. Whereas the characterisation exercise undertaken by the Respondent is at a point in time which does not satisfy the definition of “attached dwelling”, and is therefore an innominate use being prohibited development in the zone.

44. In relation to timing, the Respondent submits that the proposed strata subdivision is a discrete and subsequent component of the development and that:

“It cannot be used post facto to characterise the development that will already have been carried out by the time the subdivision occurs, namely the erection of buildings comprising multiple dwellings on a single lot. Nor would the imposition of a condition requiring subdivision prior to occupation alter that position, as the dwellings would nonetheless have been constructed on a single lot before any subdivision takes effect.” (RWS at 26)

38. The Respondent made oral submissions regarding what I referred to as a statutory fact, namely that the registration of the strata plan that is part of the application cannot occur until the buildings are actually erected on the land because a survey of the completed buildings on the land is required in order have final strata plans in registrable form. Relevantly, the Respondent emphasises that the only way that this development would be permissible, would be to create the lots before the buildings are erected on the lots and that that cannot be done in this case. The Respondent distinguishes Torrens title subdivision and strata subdivision and submits that:

“that's why this type of development, that is, the attached dwelling type, can't be carried out, and it's not permitted on this land, because you can't create Torrens title lots of the size that would be needed to accommodate the dwellings here, because it's less than the 330 square metres. The strata title, you can't carry out until after the buildings are already on a single lot, and therefore, the development of the kind, that is, or type, that is proposed here is not something that can be carried out.” Transcript 15 May 2026, p 40 at par 27 to 33)

39. The Respondent submits that one of the fundamental matters that needs to be recognised, in the context of a subdivision, is that:

“a subdivision is not a use of land, and cannot effect, by itself, a change in use to another use. A subdivision does not do that. It has nothing to do with the use of land. The use of land is a separate category of development that's identified in s 1.5. When you erect a building, s 4.19 of the Environmental Planning and Assessment Act tells us that you are authorised to use that building for the purpose for which the development consent is granted.

In this case, what happens is, the applicant erects buildings on this land, or a building, in one case, and a series of buildings in the other case, on a single lot of land. The Act then would operate to authorise the use of those buildings for the purpose for which consent is granted. In this case, the purpose that the applicant is seeking to use the buildings for is attached dwellings. At the time that these buildings are erected on the land and the authorisation is given by the Act, it can't be attached dwellings, because the development that has been carried out, that is the erection of the buildings, is on one lot; the building or buildings on one lot.

Approving a development where the carrying out of the development occurs on one lot, and the subdivision occurs later, which cannot effect the use of the land, or effect a change of the use, it can't change the fact that what has been erected on this land, at the time and before the subdivision occurs, is something other than attached dwellings, because they're all on one lot.

40. The Respondent accepts and does not cavil with the proposition that “you look at the whole of the development.” (Transcript 15 May 2026, p 36 at par 5). However, the Respondent submits that the seminal proposition remains that “subdivision is not a use of land and cannot effect, by itself, a change in use to another use.” (Transcript 15 May 2026, p 36 at par 14): Wehbe v Pittwater Council [2007] NSWLEC 827 (“Wehbe”) at [58].

41. The Applicant agrees that the starting position is that subdivision is not a use of land. The Applicant submits that the error in the Respondent’s approach to the characterisation exercise is that the development that is proposed as a whole should be characterised and that includes the strata subdivision: “It is the end purpose, which is seen to be served, by the development that is proposed, and it is an end purpose, which is informed by the acts and things, which are proposed to be carried out in development applications.” (Transcript 15 May 2026, p 27 at par 26). The Applicant relies on the decision of Botany Bay City Council v Pet Carriers International Pty Limited (2013) 201 LGERA 116; [2013] NSWLEC 147 (“Pet Carriers”), by Preston CJ which I come back to below at [61].

42. The QPLEP has some forms of residential accommodation defined by reference to lots of land and others which do not as extracted above at [22]. There are in fact three categories. The first category is defined by reference to lot of land. The second category is by mere reference to a lot and the third category, does not make any reference to any lot, land or otherwise.

43. Neither party seems to properly grapple with the effect of strata subdivision and whether a strata lot is a “lot of land” as compared with the Torrens title subdivision of land resulting in Torrens title freehold land.

44. The Applicant, in closing, submits that

“The point is that whether subdivision is occurring in a development application can affect which land use category, as defined in this LEP, development may fall into. Whilst subdivision itself may not be a use, it would not be correct to regard it as unable to affect a use and affect characterisation of a purpose.

That proposition is not undermined by what the chief judge had to say in either Wehbe or Hamptons. The reason for that lies in the fact that the purpose of the inquiry differed in each of those cases, compared to the present. In Wehbe there was an existing use, in its technical sense, and his Honour was considering a submission that subdivision effected a change of use, subdivision alone.

In Hamptons, of course, as you know, his Honour was considering the spheres of operation of two minimum lot size provisions, and how that was to be properly considered. Whether those provisions could operate concurrently, which, of course, his Honour found was the case. In neither case, was the exercise or the purpose of the inquiry directed to a development application that had component parts or types of development, but which fell to be characterised as a whole.” (Transcript 15 May 2026, p 43 from par 45)

45. I expressly put the following question to the Applicant:

“Is it the applicant's position that the strata subdivision results in an attached dwelling that is, in the definition of being on a lot of land? Isn't that the definitional query that I need to be satisfied of, in terms of lot of land, as opposed to a lot?” (Transcript 15 May 2026 p 46 at para 3 to 10).

46. The Applicant gave the following answer:

“Yes. We don't understand that to be in dispute at all, if you are looking at it in that fashion. … Each of the dwellings, once constructed and subdivided in a strata lot, will be on its own lot of land. Each being a strata lot in a strata plan of subdivision on a strata scheme.” (Transcript 15 May 2026 p 46 at para 6 to 14).

47. It is precisely the strata scheme referred to by the Applicant that expressly defines a lot in the Strata Act in terms of cubic metre space on a parcel which is the term used in the Strata Act to be the land. Accordingly, strata subdivision is technically the subdivision of cubic space and the fact that a dwelling is on ground-level does not change the fact that upon registration of the new strata plan the dwelling will be cubic space. I therefore am unable to accept that a strata lot is a lot of land.

48. The exercise of characterisation of purpose is central to planning law, as explained in Pet Carriers at [24]-[32].

49. The Applicant argues that the “exercise is to characterise the purpose of the carrying out of development: cf. 4.2(1) of the EPA Act, namely the development that is proposed by an application: cf. s 4.12(1).” (AWS at par 31). The Applicant notes, relevantly, that the exercise of characterisation is “forward-looking in the sense that it is considering the end purpose served, assuming the development has been carried out” because at the time of characterisation “none of the proposed development has been carried out” (AWS at par 32).

50. The Applicant submits that the error or flaw in the Respondent’s case is that, as in Dallad Pty Ltd v Woollahra Municipal Council [2022] NSWLEC 1673 (“Dallad*”*), the approach is to bifurcate the development into separate parts, and to seek to characterise one part only: the erection of buildings, and to ignore others, which the Applicant argues is contrary to the above authorities and clearly wrong. The Applicant submits that the Respondent’s approach is “both illogical and contrary to principle.” (AWS at par 35).

51. I now set out the authorities relied on by the parties.

The authorities

52. The Respondent relies on a number of authorities to support its approach to characterisation of development.

53. Firstly, the decision of Dallad, where it was contended that the development was for the “end purposed” of semi-detached dwellings because two attached dwellings would each be on their own lot of land, following Torrens title subdivision, which formed part of the application. In that case, the Woollahra Local Environmental Plan 2014 at cl 6.5 imposed a prohibition on the subdivision of a dual occupancy. O’Neill C rejected the Applicant’s submission that the “end purpose”, referred to in Chamwell Pty Limited v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114 at 406, is authority for assessing the proposed two attached dwellings each on their own lot of land and at [38] O’Neill C said:

“38. The proposed development is properly characterised as a dual occupancy (attached) development, as defined by LEP 2014, because the site is a single lot. The proposal is for two dwellings on one lot of land, and for the subdivision of the lot into two lots of land. The assessment is done at the time of the making of the application, and at the time of the making of the application, the site is a single lot, and the proposal to be assessed is for two dwellings on that single lot and the subdivision of the lot into two lots.”

54. As in Dallad, it is reasoned by the Respondent, and remains central to the Respondent’s case, that because the relevant site is one lot at the time of the making of the development application, and even at the time of determination, the exercise of characterisation is informed (and determined) by that fact. The Respondent submits that “The subsequent subdivision of the land cannot cure or change the fact that the building and dwellings contained in the building would be erected on a single lot of land.” (RWS, par 25).

55. The Applicant submits that Dallad is not binding and that “as it is clearly wrong, it would not be followed, even for reasons of comity.” (AWS at par 38). The Applicant submits that Dallad is an example of a form of reasoning, it cannot be higher than that. Even allowing for comity, very limited value in context of the authorities relied on by the Applicant.

56. The Applicant relies on the Court of Appeal decision of Lennard v Jessica Estates Pty Limited (2008) NSWLR 306; [2008] NSWCA 121 (“Lennard v Jessica*”*). This case turned on the interpretation of what was then s 28 of the EPA Act (now s 3.16) which allows local environmental plans (LEPs) to override private covenants to the extent necessary to allow a permissible land use and at [61] provides:

“61 The prohibition on subdivision contained in para (k)(v) is more problematic. The issue is whether “a land use allowed by” the LEP includes the subdivision of land for a particular purpose of use. It is true that in some contexts the cases have drawn a distinction between the subdivision of land on the one hand and the use of land as subdivided on the other. That distinction has been covered in the definition of “subdivision of land” in s 4B(1) of the EPA Act which contemplates the division of land into two or more parts anterior to the actual use or occupation of those parts. However, in my opinion the expression “a land use” in cl 6(1) of the LEP is capable of including the subdivision of land for the purpose of a use permitted by the LEP. Generally speaking, in the context of planning, land is not subdivided except for a particular purpose. Thus the Estate was subdivided for the purpose of creating residential lots i.e. lots intended to be used for residential purposes.”

57. The Applicant relies on Lennard v Jessica to support the proposition that there is a distinction that subdivision does not affect use but remains relevant for determination of purpose. Put another way, the Applicant’s proposition is that although subdivision is not a use of land, that is not the end answer for the characterisation of the end purpose, and that it is necessary to look at the whole of the development. The Applicant, in closing, submits that:

“What the Court of Appeal was recognising there was a distinction that subdivision doesn't affect the use of itself, but may still be relevant to the determination of purpose, because it can be for a purpose of a residential use. It can be, in other contexts, a subdivision for industrial purposes or for commercial purposes. It can be relevant to the determination of the end purpose, which is seen to be served. That's why the mere observation that subdivision itself is not a use of land is not an answer to what is the proper approach of characterisation to ask what is the end purpose that is served.

It is also, and perhaps even more of a reason, why the council's acceptance that - and my note was the council accepts completely that it is necessary to look at the whole of development in undertaking the exercise of characterisation, but then says, perhaps inconsistently, the erection of the dwellings is the whole of the development, and subdivision comes after. And the use that ought to be attributed is the use of the dwellings, that cannot be changed or affected by the subdivision, is misdirected; it's asking still the wrong question, and still dividing the characterisation task, contrary to the authorities” (Transcript 15 May 2026, p 44 at par 30 to 48).

58. The decision of Lennard v Jessica was considered by Moore J in Williams v Shellharbour City Council [2020] NSWLEC 3, where Moore J considers subdivision and purpose and at [49] to [52] says as follows:

“49. With respect to what little is to be drawn from Lennard v Jessica, the passage at [61] of Tobias JA's decision must be read in its appropriate context. Although [61] is proposed by Mr Pickles to embody matters of general principle relevant in the present context, the terms of [62] and [63] make it clear that the conclusion which his Honour reached was confined to the factual circumstances of the particular subdivision proposal. This can be seen from an examination of those paragraphs when coupled with the factual matrix earlier set out by me above.

50.These further paragraphs from his Honour’s reasons are in the following terms:

62 In the present case, the Council granted its consent to a strata plan of subdivision of the duplex to enable it to be separately used and occupied as two dwellings. In these circumstances I see no reason why the subdivision or strata subdivision of Lot 122 in the present case was not a subdivision for the purpose of enabling its use for two dwellings and so constituted “a land use” within the meaning of cl 6(1).

63 Such a construction accords with common sense and the language of cl 6(1) is not so intractable as to deny its adoption. It would in my opinion border on the irrational to exclude the strata subdivision of the duplex where otherwise the duplex may be constructed and used for the purpose of separate dwellings.

51. As can been seen from the facts in the extract at [48] above, the position with which his Honour was addressing was one where two consents (the second being for the purpose of use of the subdivided land for a duplex dwelling) had been granted. This was a quite different position to the present circumstances. The above quoted [62] and [63] of his Honour’s reasons make it clear that he was responding to this specific position not addressing any broader matter of principle.

52. As consequence, I am unable to conclude that there is any error in the broad line of authority relied upon by the Council as supporting the proposition that the words development for any purpose in cl 5.10(10) does not incorporate this subdivision as proposed within its scope.”

59. The Applicant relies on two other authorities, the first being Chamwell Pty Limited v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114 (“Chamwell”), where Preston CJ considered the proper characterisation of development comprising uses of different nature: supermarket, car park, driveways, access ways and landscaped forecourt: Cham**well at [33]. The proper enquiry was to identify the ‘end’ which all the disparate components of use serve. This is the identified purpose: Chamwell at [34]-[35]. The enquiry is to be done “at a level of generality which is necessary and sufficient to cover the individual activities, transactions or processes carried on, not in terms of the detailed activities, transactions or processes”: Chamwell at [36], citing Royal Agricultural Society of NSW v Sydney City Council (1987) 61 LGRA 305 at 310. For completeness I reproduce Camwell from [34] to [36] below:

“34 However, the nature of the use needs to be distinguished from the purpose of the use. Uses of different natures can still be seen to serve the same purpose: see Shire of Perth v O'Keefe at 534, 535; 150 and Warringah Shire Council v Raffles [1979] 2 NSWLR 299 at 301.

35 In this case, the use of the car park, driveways, access ways and landscaped forecourt are each designed to serve the end of enabling the supermarket to be carried on. That is their purpose and that purpose imparts to the land on which those uses are pursued the character of shop, including the supermarket. The end to which the parts of the land in Lot D is to serve is not roads.

36 The characterisation of the purpose of a use of land should be done at a level of generality which is necessary and sufficient to cover the individual activities, transactions or processes carried on, not in terms of the detailed activities, transactions or processes: Royal Agricultural Society of NSW v Sydney City Council (1987) 61 LGRA 305 at 310.”

60. The Applicant submits that the proper approach remains as described and summarised in Chamwell, that the essential question remains “what is the end seen to be served by the development that is proposed?” (AWS, par 19).

61. The decision of Preston CJ in Botany Bay City Council v Pet Carriers International Pty Limited (2013) 201 LGERA 116; [2013] NSWLEC 147 is also relied on by the Applicant in support of the proposition that characterisation is determined by looking at the purpose of the development. Preston CJ states at [55] and [68] as follows:

“55. The decisions fall roughly into two categories. First, there are decisions which involve a purpose which is a genus and one or more species of purposes falling within that genus. If the genus is a nominate prohibited purpose, development for that purpose will be prohibited even if it could also come within one or more species of purposes that are innominate permissible purposes. Conversely, if the genus is a nominate permissible purpose, development for that purpose will be permissible even if it could also come within one or more species of purposes that are innominate prohibited purposes. Decisions in this first category include Egan v Hawkesbury City Council (1993) 79 LGERA 321; Hawkesbury City Council v Sammut [2002] NSWCA 18; (2002) 119 LGERA 171; Abret v Wingecarribee Shire Council [2011] NSWCA 107; (2011) 180 LGERA 343; and Friends of Pryor Park Inc v Ryde City Council.

…

68. The second category of decisions relied on by the Council involve development that could be seen to be for two or more different purposes, one being permissible and the others being prohibited. The inquiry is whether the prohibited purposes are subsumed in the permissible purpose so that it is legitimate to disregard the prohibited purposes and treat the permissible purpose as that for which the land is being used, or whether they are independent of each other so that the land is being used for both prohibited and permissible purposes. Decisions in this category include Foodbarn Pty Ltd v Solicitor-General; C B Investments Pty Ltd v Colo Shire Council; Lizzio v Ryde Municipal Council; Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404; Berowra RSL Community and Bowling Club Ltd v Hornsby Shire Council [2001] NSWLEC 243; (2001) 114 LGERA 345; and Bardsley-Smith v Penrith City Council.”

62. The Applicant identifies that the first category is relevant to the Respondent’s contention and submits as follows:

“42. In Pet Carriers, the Court highlighted the importance of understanding how the land use table in an environmental planning instrument is structured, as it affects the consequences of characterisation: [29]-[32], [55].

43. At [55], the Chief Judge observed:

If the genus is a nominate prohibited purpose, development for that purpose will be prohibited even if it could also come within one or more species of purposes that are innominate permissible purposes. Conversely, if the genus is a nominate permissible purpose, development for that purpose will be permissible even if it could also come within one or more species of purposes that are innominate prohibited purposes.

(underlining added)

44. The thing to notice is that whether a purpose of development is nominate or innominate matters. Purposes that are expressly nominated are not taken out of permissibility or prohibition because they could also potentially fall within an innominate descriptor: Pet Carriers at [50].

63. The Applicant emphasises the need to characterise the proposed development as a whole and relies on the approach that the whole of a proposed development must be considered when characterising the purpose of development: People for the Plains Inc. v Santos NSW (Eastern) Pty Ltd (2017) 220 LGERA 181; [2017] NSWCA 46 at [139]-[143] (Ward JA); see also Terra Ag Services Pty Ltd v Griffith City Council [2017] NSWLEC 167 at [44]-[45] (Preston CJ). The applicant also relies on an unreported decision in June 1996 of prior Chief Judge Pearlman J in Gregory Ronald Young v Parramatta City Council [1996] NSWLEC 164 (19 June 1996). It concerned a s 56A appeal from a decision of Assessor Hussey, and it involved a grant of development consent. That is, the refusal to grant consent for a development involving subdivision and construction of a dwelling house and duplex. Pearlman J identifies that the assessor did not misunderstand the nature of the development and instead understood correctly that it involved three separate elements. The Applicant observes:

“Looked at overall, the development application did not seek approval for two dwellings upon the existing lot. It sought approval for three dwellings on three lots. It would not have been in accordance with the facts for the assessor to regard the primary subdivision as involving a dual occupancy subdivision if, as he was required to do, he had regard to the whole of the development application before him. In a factual sense, the arguments were being put by the other party, but the argument based on characterising a part of the development disclosed, or proposed, was that which was rejected as contrary to principle” (Transcript 15 May 2026, p 32 at par 40).

64. In oral submissions, the Applicant summarises:

“In both People For The Plains and Terra Ag, factually, the exercise in each case involved a consideration of potential different uses; storage versus rural supplies, in the case of Terra Ag. Agriculture, that is the lucerne cropping, versus the water purification or treatment, in the case of People For The Plains. That's not this case, factually, because, as we observed in the written outline. However, it is to be characterised as really only one purpose; it's of a residential nature. It's not a competing characterisation task in this case. Despite that, the approach, that is confirmed in both those decisions, emphasises the need to characterise the proposed development as a whole.” (Transcript 15 May 2026, p 31 at par 28)

“It does not appear that any of the decisions, People For The Plains, Terra Ag, or Young, were drawn to the commissioner's attention in Dallad. There's certainly no mention of them, and there's no record of them in Dallad to those matters. We say, in the written outline, if it stands for any principle, you would be well satisfied that that decision is wrong, clearly wrong, to the extent it can be understood as embracing an approach of characterising part only of development that is proposed, rather than as a whole. That's whether you are persuaded by the considered dicta in People For The Plains and Young, or, as we say more directly, because you're bound by the finding in Terra Ag Services.” (Transcript 15 May 2026, p 33 at par 24)

65. The Respondent submits:

“Those cases that my friend has referred to of the People For The Plains Incorporated, the Terra Ag Services, and the Young v Parramatta Council cases, I accept completely the proposition that you look at the whole of the development. Don't cavil with that proposition at all. When you look at the whole of the development in this case, the subdivision that occurs after the carrying out of that development, that is, the erection of the buildings and the use of those buildings authorised by the Act, that use cannot be changed by the subdivision that occurs later. That's the whole of the development. The subdivision occurs later of development that is already on the land.” (Transcript 15 May 2026, p 36 at par 3)

66. The Court also sought submissions from the parties as to whether the findings by Preston CJ in Canterbury-Bankstown Council v Hamptons Property Services Pty Ltd [2025] NSWLEC 41 (“Hamptons*”*) relating the application of minimum subdivision lot size development standards whether there was proposed subdivision at 2 different stages (from [42]) had any implications for these proceedings. Hamptons also considered characterisation of a development for the purpose of the floor space ratio (FSR) development standard and at [64] provides:

“64. Contention 2 was that: “The Development Application should be refused as the Applicant has not correctly characterised the proposed development or considered the applicable standards and controls”. The particulars to contention 2 sought to characterise this aggregated “proposed development”, instead of characterising each development separately, insofar as a particular development can be characterised as being for a purpose. The two proposed subdivisions, of course, are purposeless: the subdivision of land is not for any purpose, so that the grant of development consent for the subdivision of land does not authorise the use of the resulting lots for any purpose. In these respects, contention 2 misdirected the Commissioner’s evaluation of the development application.”

67. The Respondent addressed the Hamptons decision as follows:

“At para 62, there was a debate and discussion about whether the floor space ratio development standard applied to the subdivision components of the development. His Honour says, it's about halfway down para 62, "The only developments...4 to 8." I've already referred to that provision in the context of this matter. If you grant consent to the dwellings that are to be erected in this case, that would be authorising the use on the lot, which is not for a permitted purpose.

At para 64, this is a follow‑on from what his Honour had said in the Wehbe v Pittwater decision. The second sentence in para 64, he says, "The particulars to...for any purpose." It's more fulsome than what he said in Wehbe, but it's consistent with earlier decisions, including Wehbe, confirming that subdivision is purposeless; it's not a use, and it can't change a use of land in itself. That's all I want to refer to.” (Transcript 15 May 2026, p 43)

68. The Applicant addressed the Hamptons decision as follows:

“In Hamptons, of course, as you know, his Honour was considering the spheres of operation of two minimum lot size provisions, and how that was to be properly considered. Whether those provisions could operate concurrently, which, of course, his Honour found was the case. In neither case, was the exercise or the purpose of the inquiry directed to a development application that had component parts or types of development, but which fell to be characterised as a whole. In fact, that issue has been looked at at appellate level.” (Transcript 15 May 2026, p 44)

69. Having considered the authorities I find that the approach in Dallad is consistent with the approach by Preston CJ as to the effect of subdivision in Wehbe at [58] and accordingly do not agree that Dallad is wrong. I come back to the effect of the proposed strata subdivision in these proceedings below at [81]. I do agree that Pet Carriers only dealt with development which relates to uses of land unlike Dallad and Wehbe and here where consent for subdivision is also sought. Therefore, Pet Carriers provides limited precedent value and guidance to resolve the disputed approaches to characterisation in these proceedings.

Consideration and findings: whether the development proposed is a type of development specified in item 3 in the Zone R2 land use table

70. The description or labelling of development in a development application is not determinative of the characterisation of the development: Gordon and Valich Pty Ltd v City of Sydney Council [2007] NSWLEC 780 at [19]. This means that the Applicant’s nomination of the development as “attached dwellings” is not determinative of its characterisation to establish permissibility.

71. The development proposed by the Photinia St development and the Abelia Ave development seek consent for different types or species of development, namely:

72. the erection of buildings: s 1.5(1)(c), EPA Act;

73. subdivision of land: s 1.5(1)(b), EPA Act; and

74. the use of land: s 1.5(1)(a), EPA Act.

75. The Applicant submits:

“in the attention drawn to the different species of development that are defined in s [1.5(1)] of the Act. There's no doubt that they are defined; they are all species of development. That does not mean, if the submission is made this way, that the exercise of characterisation is able to be legitimately done by focusing only on each type, or some types, to the exclusion of others” (Transcript 15 May 2026, p 33 at par 28).

73. The controversy in Dallad arose as a result of the terms of cl 6.5 in that LEP prohibiting the subdivision of a dual occupancy, and but for that express prohibition, it would not have arisen. The Respondent submits that this:

“brings to the fore the kinds of development that are carried out on land, and then the subsequent subdivision of them doesn't change the character, or the characterisation, of the development that is carried out on the land, in the terms of the erection and use of the buildings. It can't. Otherwise, you could never subdivide a dual occupancy; you could never subdivide multiple dwelling housing into strata, because multiple dwelling housing, for example, in terms of the definition that is in the dictionary, is "more than three dwellings carried out on one lot". You then, and quite commonly, see the subdivision of multiple dwelling housing. It's still multiple dwelling housing, because that's what's carried out on the lot. The subdivision doesn't affect the change of the use, and it can't.” (Transcript 15 May 2026, p 39 at par 35 to 46)

74. The Respondent’s central proposition is that because the site is one lot at the time of making the development application, the exercise of characterisation is informed (and determined) by that fact (RWS at pars 18, 24, 25 and 27). The characterisation exercise, on Council’s argument, is done on the basis as if part of the proposed development has been carried out–the erection of buildings, but not another part–subdivision (AWS at par 34).

75. The Respondent argues that the strata subdivision of the land after the erection of the building or buildings, as proposed in the development applications, does not change the fact that both Lot 13 and Lot 100 are, and will remain at the time of determination of the development application and at the time the buildings and dwellings are erected and completed, single lots of land.

76. The Respondent submits that in the present cases the requirement in the definition for “attached dwelling” in the QPLEP that each of the dwellings be on its own lot of land would not be satisfied at the point at which they would be erected on the land. The Respondent submits that

“It is integral to the definition of ‘attached dwellings’ that there be more than one lot on which such development is to be carried out because each dwelling needs to be on its own lot of land. If a building and the dwellings contained in it is proposed to be erected on one lot, it cannot be development for ‘attached dwellings’ because the development is in fact the erection of the building on the single lot. The subsequent subdivision of the land cannot cure or change the fact that the building and dwellings contained in the building would be erected on a single lot of land.” (RWS, par 25)

77. The Respondent submits that the proper interpretation of paragraph (b) of the definition of “attached dwellings”, in the context of development for the erection of a building or buildings, requires each proposed dwelling to be erected on its own lot. In terms of timing, the Respondent submits that the lot for each dwelling therefore needs to exist before the building containing the dwellings is erected.

78. If the Respondent is correct, applying this interpretation to the present case, both Lots 13 and 100 are presently (and will be at the time of erection of the buildings) singular lots of land, with the result that the proposed dwellings will be on “one lot of land” rather than on their “own lot of land” as referred to in paragraph (b) of the definition of “attached dwelling”.

79. The Applicant submits that proposed developments readily fall within the definition of “attached dwellings” because it is “beyond doubt that, objectively determined, the individual strata lots and dwellings would ultimately be sold, and each used by the subsequent owner as a dwelling on its own strata lot.” (AWS at par 49).

80. The Applicant makes no further argument regarding that aspect of the definition of “attached dwelling” and instead focuses on the characterisation of development exercise being in the context of the purpose of the whole development rather than at the time of the development application when, as agreed between the parties, the site is a single lot of land.

81. I have found that characterisation of development is undertaken at the time of determination by a consent authority. However, that does not resolve the challenge presented in these proceedings, and that is what is meant by characterisation of the whole of the development for the purpose of determining permissibility when consent is sought for subdivision of land pursuant to cl 2.6 of the QPLEP and in accordance with the Strata Act which firstly, cannot take place until and unless the erection of the building(s) is completed and which secondly, when the strata subdivision plan is registered, does not result in each dwelling being on its own lot of land due to the definition of lot in the Strata Act being one or more cubic spaces comprised together with the common property in the scheme in a parcel, being the site.

82. I asked the Applicant to “walk me through” how the court would reach the conclusion as to characterisation because “[t]he definition of attached dwelling is on a lot of land, and it's that issue that I'm grappling with” (Transcript 15 May 2026, p 45 at par 27). The Applicant gave the following answer:

“The development that is proposed contains a number of components: the erection of the building and the subdivision of the land. One has to ask, if the development is carried out, what purpose does it serve? One does not make a distinction or a bifurcation or a selection only of part of the development that is proposed. When one considers the whole of the development that is proposed, the result of that will be development that answers each of the limbs of the definition of attached dwellings. That is, dwellings that are attached to each other by a common wall, not above each other; each on its own lot of land.

We don't understand, and I said this in chief, we don't understand, because nothing else has been said, contrary to this, in my learned friend's submissions, that if the approach to characterisation is, as the applicant has said, ought to occur, the result is one that fully meets the definition of attached dwelling in the LEP. The real distinction is the approach focuses on part of the development and at a particular point in time, as I indicated in my opening remarks.

Once the approach of the council is rejected as wrong in principle, it should follow, in our submission, that there will be no difficulty at all in the court finding that the elements of attached dwelling are entirely met in this case, by the carrying out of the proposed development.

COMMISSIONER: Is it the applicant's position that the strata subdivision results in an attached dwelling that is in the definition of being on a lot of land?

TO: Yes. We don't understand that to be in dispute at all, if you are looking at it in that fashion.

COMMISSIONER: Isn't that the definitional query that I need to be satisfied of, in terms of lot of land, as opposed to a lot?

TO: Each of the dwellings, once constructed and subdivided in a strata lot, will be on its own lot of land. Each being a strata lot in a strata plan of subdivision on a strata scheme.”

83. I am not convinced though that even after construction of the building(s), each dwelling will be on its own lot of land, as required to satisfy the definition of “attached dwelling” because strata subdivision creates lots, as defined by the Strata Act, being cubic metres of space.

84. Put another way, even if I were to consider the whole of the development to include the strata subdivision, I find that the proposed developments cannot properly be characterised as development for the purposes of “attached dwellings” because each dwelling will never be on its own lot of land.

85. I find that the strata subdivision does not achieve what the Applicant claims and that the Proposed Development cannot be characterised as “attached dwelling” because a strata lot is not a “lot of land”.

86. I disagree with the Applicant’s application of the decision in Pet Carriers because these proceedings do not fall in either the first category of decisions nor in the second category of decisions referred to in Pet Carriers at [55] and [68]. I reach this conclusion because here there are two distinctly different types of development, the first being the erection of buildings and the second being subdivision of land. The first, the construction of dwellings, is a use of land and must be able to be characterised as a nominate permissible purpose listed in item 3 of the Land Use Table for Zone R2 Low Density Residential in the QPLEP in order for the Court to be able to grant consent, otherwise it is an innominate prohibited purpose within that land use zone. On the other hand, the strata subdivision is not of a genus that is captured by the Land Use Table but rather is otherwise independent pursuant to s 1.5(1)(b) of the EPA Act and cl 2.6 of the QPLEP.

87. Unlike Torrens title subdivision, strata subdivision cannot be effected until and unless the construction of the building is completed.

88. As identified in Pet Carriers at [28], a use of land can be for two or more purposes and that when land is used for two conflicting purposes, difficult questions of construction and characterisation can arise when the environmental planning instrument permits one purpose but prohibits the other. The difficult question of construction and characterisation in these proceedings arises because subdivision is not a use of land (Wehbe at [58]) and the effect of strata subdivision does not take place until the construction is complete and when it does take effect it does not create lots of land upon which each dwelling will occupy as required by the definition of “attached dwelling” and therefore the use of land cannot be a characterised as a nominate permissible purpose pursuant to item 3 of Zone R2 in the QPLEP.

89. For these reasons I conclude that the court does not have power to grant consent to development that is prohibited in Zone R2 and that accordingly, development application for each of the proceedings must be determined by the refusal to grant consent.

Orders:

90. The Court orders in relation to proceedings 2025/461403, referred to as the Photinia St development:

91. The appeal is dismissed.

92. Development application DA.2025.0302 which seeks consent for development described as the construction of 3 attached dwellings with associated landscaping, site works and strata title subdivision at 12 Photinia Street, Tralee, legally described as Lot 13 in DP 1302790, is determined by the refusal to grant consent.

93. All exhibits are retained.

94. The Court orders in relation to proceedings 2025/461415, referred to as the Abelia Ave development:

95. The appeal is dismissed.

96. Development application DA.2025.0420 seeking consent for development described as the construction of 66 x 2 storey attached dwellings with associated landscaping, site works and strata title subdivision at 2 Abelia Avenue, Tralee, legally described as Lot 100 in DP 1316639 is determined by the refusal to grant consent.

97. All exhibits are retained.

E Espinosa

Commissioner of the Court

**********

Amendments

30 September 2026

Corrections made to the case name and the parties' name for the respondent.